Li v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for an order restraining the respondents from removing the applicant from Australia pending further orders of the Court. The matter was listed urgently before me on 22 May 2002 and was adjourned part-heard until 24 May 2002. I announced at the end of the hearing that I was not proposing to issue an injunction. These are my reasons for dismissing the application for interlocutory relief. 2 The applicant is a Chinese national. He is an unlawful non-citizen, who is in immigration detention, being held at Villawood Immigration Detention Centre ("the Centre"). The evidence suggests that the applicant held a business visa which expired in February 2002, and that he was taken into detention on 7 March 2002. It is common ground that he has no application on foot for another visa. There is no suggestion that he is entitled to apply for a further visa. 3 The respondents to the application are, respectively, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") and Australian Correctional Management Pty Ltd ("ACM"), which apparently administers the Centre. 4 It appears that on 14 March 2002, the applicant was knocked over by other detainees who were involved in what he has described to his solicitor as a "running brawl". In consequence, he sustained a fractured left patella. The applicant was operated on at Liverpool Hospital on 17 March 2002. He was released from the hospital on 20 March 2002. He has had metal pins or wires placed in his knee, which will need to be removed within several months. 5 On 26 March 2002, the applicant and his wife were informed by ACM officers that they were to be removed from Australia. On that day they were taken to Sydney Airport. They were not, however, removed, apparently because the captain of the aircraft refused to take the applicant as a passenger on the aircraft. The applicant and his wife were returned to the Centre. 6 The applicant was interviewed on 17 April 2002 by an employed solicitor of the firm now acting for him. The main purpose of that meeting was to take instructions from the applicant in relation to the incident which took place on 14 March 2002, with a view to commencing proceedings in respect of that incident. 7 On 13 May 2002, the applicant instituted proceedings in this Court against the Minister and ACM. In these proceedings, the applicant seeks a variety of orders, including damages. The statement of claim filed on the applicant's behalf alleges that the Minister and ACM owed him a duty of care to ensure that he was free from violence at the Centre and that he would receive proper and adequate medical treatment should he be injured. It is further alleged that the Minister and ACM breached their duty of care to the applicant when he was assaulted and that he was denied adequate treatment for the injuries he sustained on that occasion. There may be a question as to whether the Minister, as distinct from the Commonwealth is a proper respondent to those proceedings, but that need not be pursued at this stage. 8 On 14 May 2002, the applicant's solicitors made a complaint on his behalf to the Human Rights and Equal Opportunity Commission ("HREOC"). The complaint alleges that the police had failed to investigate what is said to have been an assault at the Centre and that he has been the subject of racial discrimination. He also complains of lack of access to an interpreter and says that an attempt should not have been made to remove him from Australia on 26 March 2002. 9 The present motion was filed on 22 May 2002, in consequence of the applicant's solicitors being told by an officer of the Department of Immigration and Multicultural and Indigenous Affairs that removal of the applicant from Australia was imminent. An urgent hearing took place on that day. As the matter was adjourned part-heard to 24 May 2002, the Minister, by his solicitor, gave an undertaking not to remove the applicant from Australia before 4 pm on 24 May 2002. 10 The applicant invokes the jurisdiction of the Court under s 39B(1) of the Judiciary Act 1903 (Cth) for the interlocutory relief he seeks. He puts his case on three bases: